.PORN AND .SUCKS DOMAIN NAMES

Soon new extensions on domain names will be available, including .porn and .sucks.  While many have criticized the creation of these additional domain endings as simply extortion by domain registration companies to force defensive domain name purchases, your entity, and you individually, may wish to purchase these domain names so that your name, ending in those extensions, will not be usable by third parties.

ARE MEDICAL RECORDS REALLY CONFIDENTIAL?

Many assume that medical records are confidential under state law.  While Indiana statutes require mental health records, medical records from an autopsy, medical records from impairment of disability hearing processes, volunteer firefighting injury medical records and certain others to be confidential, medical records are not declared by statute, at least in Indiana, to be generally confidential.

Indiana does have a statute which prohibits public agencies from releasing medical records, but it is often mistakenly believed that this statute makes all medical records wholly confidential in Indiana.

Does HIPAA make these records confidential?  No.  While HIPAA provides certain privacy protections with regard to the use of medical records (those which contain PHI), it does not declare that all medical records are confidential.

Both Indiana and federal courts have methods for protecting medical records in administrative and judicial hearings, and great care must be taken under Indiana’s Administrative Rule 9 or in seeking a protective order or HIPAA qualified protective order under federal rules.  If you aren’t sure how to keep medical records confidential in administrative or judicial proceedings, please seek appropriate professional assistance.

RAC OVERPAYMENT DECISION AND YOUR RESPONSE

CMS recently added to its FAQ section on its RAC website the answer to the question to “what is the difference between the recovery audit contractor (RAC) discussion period and the rebuttal and redetermination process?”

Those involved in any aspect of a RAC audit claiming an overpayment should be very aware of the differences between the various possibly responses to a RAC overpayment claim.  The terminology includes the RAC discussion period, the RAC rebuttal and the RAC redetermination reprocesses.  Attached to the end of this newsletter is a chart which discusses the differences between these three terms, and the deadlines.  Again, if you are involved in this process, you need to know which of the responses to make and by when to make them since the time periods are critical.

Please understand that the time periods provided for a response or a submission do not extend that time period or any of the other two time periods listed in the chart.

Truly, if a RAC audit results in an overpayment claim, you should have a response team not only to the audit, but also a post overpayment response team designated and ready to make a quick, accurate and forceful response to such a claim.

PROFESSIONAL BOARDS

Many states have laws that establish professional boards for medicine, dentistry and other activities.  These boards not only have responsibility under those statutes for certain investigation or punishments for doctors, dentists or similar professions, but in many cases, issue rules that may restrict who practices as a doctor, chiropractor, dentist or similar profession.

In many cases the boards and the members of the boards have enjoyed immunity from certain liabilities and limitations such as antitrust law.

Last month the United States Supreme Court held, in a case involving the North Carolina Dental Board, that in order to have state action immunity for professional board regulatory actions, there must be not only active state supervision of such professional boards, but such boards must also follow a “clearly articulated state policy” if there is to be a displacement or limitation upon competition.  Because this is a United States Supreme Court decision, it will apply to all states, including Indiana, Illinois and Kentucky.

We also note that this follows a recent FTC action which opposed a proposed Texas state board set of rules which would have imposed restrictions on the ability of Texas dentist to contract with non-dentist.  The FTC took the position opposing the antitrust or competitive limitation results that the FTC felt were likely.

Going forward, states may need to review the statutes and people appointed to state professional boards.  When these boards undertake punitive or disciplinary action or pass rules which may exclude others from providing services or activities in that professional area, they may now be open to legal challenge.  How states address this will be the most interesting.  Will states reduce the number of physicians on the Indiana Physicians Board or Indiana Medical Licensing Board?  Will the number of dentist be reduced to half or a minimum on the Indiana Dentistry Board?  What will “active supervision” by a state encompass?  What separate agency will need to review proposed rules of professional boards in order to pass muster under this Supreme Court ruling? 

This newsletter is edited by Paul Wallace of Jones ∙ Wallace, LLC, a member of the American Bar Association Healthcare Law Section and the American Health Lawyers Association who has been representing physicians and healthcare practices for over 25 years.  Mr. Wallace assists physicians in health practices in contract items, federal legal compliance, creation of practice entities, estate and wealth planning and similar issues.  Please feel free to call if you have any questions on this newsletter or legal matters at (812) 402-1600 or pwallace@joneswallace.com.